The Senate is considering the first major update to the Electronic Communications Privacy Act since its enactment in 1986, six years before a British engineer used a computer to send the first SMS (short message service) text on Dec. 3, 1992, to wish a colleague "Merry Christmas."
Twenty years later, cellphone users send and receive nearly 2.3 trillion text messages a year, and the nation's 321.7 million wireless subscriptions outnumber its population, according to the Cellular Telecommunications Industry Association.

Privacy advocates contend that allowing police to fish through years of fleeting text messages would expose cellphone users to unreasonable searches prohibited under the Fourth Amendment.

Authorities take a different view.

"Today's electronic communications devices are silent witnesses to the vast majority of crimes," associations representing district attorneys, police chiefs, county sheriffs and others wrote in a letter to Vermont Democratic Sen. Patrick Leahy, chairman of the Committee on the Judiciary, and Iowa Republican Sen. Chuck Grassley, the ranking minority member.

Archiving text messages could solve criminal cases and holds "the key to ruling out suspects and exonerating the innocent," the law enforcement groups wrote in a Nov. 28 followup letter. It notes the law does not require service providers to respond swiftly to requests backed by warrants.

"From the civil liberties perspective, it's somewhat horrifying that we have this ephemeral communication channel that law enforcement is saying we should start storing," said Lorrie Cranor, a Carnegie Mellon University computer science and public policy professor and director of the CyLab Usable Privacy and Security Laboratory.

Cranor said establishing a repository of text messages would add to the trend of building snooping capabilities into a telecommunications system created for communication, not surveillance. "Going after text messages seems to be the next logical step," she said.

Most major cell service providers log details about text messages -- such as when and from where they were sent -- for at least a year, but generally they do not retain message content, according to a Department of Justice report.

Verizon keeps message content for three to five days; Virgin Mobile, which is owned by Sprint, retains it for 90 days, according to the August 2010 report.

It's unclear whether that has changed. Verizon did not respond to questions, and a Virgin Mobile spokeswoman declined to comment. T-Mobile, AT&T, Sprint and Nextel told the government they do not retain message content.

Wesley Oliver, a Duquesne University law professor, said an amendment to the privacy act might withstand a constitutional challenge if it requires police to limit their searches to specific, predetermined words and people involved in, for example, crimes involving drugs, guns or domestic abuse.

"So if someone is suspected of smuggling diamonds the police couldn't do a search for references to cocaine," Oliver said. "A judge can tell police to look for only certain things."
Oliver said cellular service providers might have a stronger legal argument against requiring text message storage because it would require adding memory capacity and, presumably, hiring technicians capable of combing through messages quickly to comply with a warrant.

"With the advancement in computer forensic investigations, we are able to get most information from the cell phone itself," Del Cimmuto said.

Assuming a cellphone belonging to a suspect or victim can be found, Del Cimmuto said he and three other city detectives are trained to use Cellebrite, the industry standard cellphone forensic tool, to retrieve data from phones.

That includes data the owner deleted, he said.

Smaller police departments that don't have the latest forensic tools might have to rely more on cellphone providers, Del Cimmuto said.

Text and email messages figured prominently in criminal cases in Pennsylvania, ranging from the "Bonusgate" scandal in the state Legislature to the trial of a Monroeville teenager convicted of stabbing his 16-year-old ex-girlfriend to death in 2007 after sending dozens of angst-ridden messages.

Phil DiLucente, a criminal defense lawyer, said cellphone users must be notified that the content of their text messages could be stored and potentially end up in court.

"If they are going to notify people that this is going to be retained, then people might change their texting behavior," he said.

Jeremy Boren is a staff writer for Trib Total Media. He can be reached at 412-320-7935 or jboren@tribweb.com.